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Title: Privacy and Confidentiality Walter Davis, MD Center for Biomedical Ethics and Humanities


1
Privacy and ConfidentialityWalter Davis,
MDCenter for Biomedical Ethics and Humanities
2
Confidentiality
  • In clinical care
  • In public health
  • In genetic testing
  • In the collection of biological materials

3
A Married Man Contracts Syphilis
  • Steve is a 38-year old married man who frequently
    travels in the course of his business. Recently,
    he developed a vesicle on his penis. After an
    examination by his physician, Steve is diagnosed
    as having primary syphilis. His physician informs
    him that this diagnosis will have to be reported
    to the State Department of Health, in accordance
    with state law governing sexually transmitted
    disease (STD). When asked what this will mean,
    the physician explains that the health department
    might then trace all of Steves sexual contacts
    to inform them of possible exposure and the need
    for treatment.
  • Steve is clearly uncomfortable with this
    reporting requirement. He states that he must
    have contracted the disease on a business trip in
    Miami, where he had a brief affair. He tells
    his doctor that he has not had any sexual contact
    with his wife since that out-of-town interlude
    and he would appreciate it if his doctor would
    not mention this to anyone, especially his wife.
    The doctor has trouble making that sort of
    commitment, and wonders what his obligations are
    in this case.

4
I swear by Apollo Physician and Asclepius and
Hygieia and Panaceia and all the gods and
goddesses, making them my witnesses, that I will
fulfill according to my ability and judgment this
oath and this covenant To hold him who has
taught me this art as equal to my parents and to
live my life in partnership with him, and if he
is in need of money to give him a share of mine,
and to regard his offspring as equal to my
brothers in male lineage and to teach them this
art if they desire to learn it without fee
and covenant to give a share of precepts and
oral instruction and all the other learning to my
sons and to the sons of him who has instructed me
and to pupils who have signed the covenant and
have taken an oath according to the medical law,
but to no one else.
5
I will apply dietetic measures for the benefit of
the sick according to my ability and judgment I
will keep them from harm and injustice. I will
neither give a deadly drug to anybody if asked
for it, nor will I make a suggestion to this
effect. Similarly I will not give to a woman an
abortive remedy. In purity and holiness I will
guard my life and my art.
6
I will not use the knife, not even on sufferers
from stone, but will withdraw in favor of such
men who are engaged in this work.
7
Whatever houses I may visit, I will come for the
benefit of the sick, remaining free of all
intentional injustice, of all mischief and in
particular of sexual relations with both female
and male persons, be they free or slaves. What I
may see or hear in the course of the treatment or
even outside of the treatment in regard to the
life of men, which on no account one must spread
abroad, I will keep to myself holding such things
shameful to be spoken about. If I fulfill this
oath and do not violate it, may it be granted to
me to enjoy life and art, being honored with fame
among all men for all time to come if I
transgress it and swear falsely, may the opposite
of all this be my lot.
8
A Married Man Contracts Syphilis
  • Steve is a 38-year old married man who frequently
    travels in the course of his business. Recently,
    he developed a vesicle on his penis. After an
    examination by his physician, Steve is diagnosed
    as having primary syphilis. His physician informs
    him that this diagnosis will have to be reported
    to the State Department of Health, in accordance
    with state law governing sexually transmitted
    disease (STD). When asked what this will mean,
    the physician explains that the health department
    might then trace all of Steves sexual contacts
    to inform them of possible exposure and the need
    for treatment.
  • Steve is clearly uncomfortable with this
    reporting requirement. He states that he must
    have contracted the disease on a business trip in
    Miami, where he had a brief affair. He tells
    his doctor that he has not had any sexual contact
    with his wife since that out-of-town interlude
    and he would appreciate it if his doctor would
    not mention this to anyone, especially his wife.
    The doctor has trouble making that sort of
    commitment, and wonders what his obligations are
    in this case.

9
Some medical considerations
  • Risk that Steves wife has been exposed
  • Risk that other contacts have been exposed
  • Confirmatory antibody testing
  • If the vesicle represents herpes, that indicates
    primary infection much earlier
  • Wife herself may be source of infection
  • Wife should be notified so she can be tested
    fetal risk, neurosyphilis in late stage
  • HIV testing may be indicated

10
What obligations does the MD have to maintain
confidentiality?
  • Role-related duties
  • Consequences for md-pt relationship
  • In some states, state licensing law, case law,
    state health codes or other state or federal
    regulations require confidentiality

11
Exceptions to MDs obligation to maintain
confidentiality
  • In many states, legal obligation to report STDs
    to state health depts. for contact
    notificationnot to the intimate contact
  • Disclosure to managed care organization or other
    insurer (unless he pays out of pocket)

12
What about obligations to Steves wife?
  • MD may encourage Steve to disclose
  • MD notification of wife that she has been exposed
    incompatible with traditional view
  • (Exceptions have been made for HIV in some
    states)
  • Legal status of third party notification unclear
    (Tarasoff)

13
An Elderly Driver
  • Selma is an 80-year-old widow who is being
    treated by an internist for hypertension. She
    tolerates her medications well and is considered
    to be in good health. She has suffered
    progressive visual loss, however, and has been
    told by her ophthalmologist that she has macular
    degeneration. Her visual acuity is 20/200 in her
    right eye and 20/70 in her left.
  • Selma lives by herself in a suburban
    neighborhood. Her grown children live in another
    state. One of her friends, who is a patient of
    the same internist, has confided that Selma is
    still driving, and she wonders if that is a good
    idea, considering her poor vision.
  • At Selmas next visit to her physician, she is
    asked about her driving. Of course Im still
    driving, she says. How can you survive without
    a car out here? She is eager to point out that
    she has never been in an accident, she only
    drives to the store now and then, drives at a
    snails pace, and would certainly be able to
    see a cow or an elephant. She assures the doctor
    that there are no small children around and that
    she will be careful. Besides, she asserts, her
    peripheral vision is as good as ever.

14
Some medical considerations
  • Functional ability, not diagnosis, is the issue
  • Risk taking behavior may be more important than
    visual limitations
  • Alzheimers disease, seizure disorders,
    alcoholism, may impair functions relevant to
    driving
  • Correctible underlying disease states should be
    identified visual, auditory

15
Ethical and legal considerations
  • Some states require retesting for older drivers
  • Some states require MDs to report persons with
    certain medical conditions (esp. epilepsy), but
    may cause patients to under-report symptoms
  • Limited or restricted licenses available in some
    states

16
What if Selma insists on continuing to drive?
  • The MD must at least encourage her to restrict
    her driving and refer her to community
    transportation sources
  • If local law requires reporting loss of visual
    acuity, then MD must comply
  • If not, assurance of confidentiality allows
    patients to feel they can confide in MDs
  • And, as a practical matter, to whom would the MD
    report?

17
When do MDs responsibilities to third parties
trump confidentiality?
  • Vulnerable persons (e.g., child abuse)
  • Innocent third parties (e.g., risk of
    communicable disease)
  • Persons in imminent or foreseeable danger
  • Selmas case does not fall neatly into any of
    these categories

18
The big questions
  • Is the MD a societal agent?
  • So justified, where do such breaches of
    confidentiality end?
  • Should private MDs become agents of the state?
  • Whose job is it to ensure safety on the road?

19
Public health
  • Tension between individual confidentiality and
    public welfare may be compromised in favor of
    latter
  • Serious threat
  • Effective intervention available
  • Least restrictive means possible
  • Least compromise of confidentiality possible

20
Genetic testing
  • Tests are hard to interpret, easy to over
    interpret, generally of limited predictive value,
    but very tempting
  • Results of genetic tests for disease
    susceptibility may be of great interest to
    insurers, employers, academic institutions
  • Life/ADD insurance
  • Occupational safety (Santa Fe case RE carpal
    tunnel)
  • Admission to medical school?

21
But a lot of genetic data is out there
  • The US Dept. of Defense has millions of blood
    samples
  • Huge private DNA databases being established
  • Decode Genetics (Iceland)
  • Biobank (UK)
  • Many private companies

22
Biological materials
  • Consent of donor required for tissue samples to
    be used in research
  • Samples unlinked to individually identifiable
    information preferable, but often impractical
  • If linked samples are to be used consent must be
    obtained and link or key must be carefully guarded

23
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24
Declare the past, diagnose the present, foretell
the future practice these acts. As to diseases,
make a habit of two things to help or at least
do no harm. The art has three factors, the
disease, the patient, the physician. The
physician is the servant of the art. The patient
must cooperate with the physician in combating
the disease. Hippocrates, Epidemics I
25
The dignity of the physician requires that he
should look healthy, and as plump as nature
intended him to be for the common crowd consider
those who are not of this excellent bodily
condition to be unable to take care of others.
Then he must be clean in person, well dressed,
and anointed with sweet smelling unguents that
are not in any way suspicious. This, in fact, is
pleasing to patients.
26
In appearance, let him be of a serious but not
harsh countenance for harshness is taken to mean
arrogance and unkindliness, while a man of
uncontrolled laughter and excessive gaiety is
considered vulgar, and vulgarity especially must
be avoided.   Hippocrates, The Physician
27
I urge you not be too unkind, but to consider
carefully your patients superabundance or means.
Some times give your services for nothing,
calling to mind a previous benefaction or present
satisfaction. And if there be an opportunity of
serving one who is a stranger in financial
straits, give full assistance to all such. For
where there is love of men, there is also love of
the art.   Hippocrates, Precepts
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